Griffith v. Miller
New York Supreme Court
Motion for judgment as in case of nonsuit. On the third day of the last March circuit in Rensselaer county, the defendant prepared papers for .this motion. In his affidavit he stated that the venue was laid in Rensselaer, that issue was. joined in June, 1830, that the circuit court was in session, and that the cause had not been noticed for trial.
Read the full summary
Motion for judgment as in case of nonsuit. On the third day of the last March circuit in Rensselaer county, the defendant prepared papers for .this motion. In his affidavit he stated that the venue was laid in Rensselaer, that issue was. joined in June, 1830, that the circuit court was in session, and that the cause had not been noticed for trial. The plaintiff objected to the sufficiency of the affidavit, insisting that to entitle the defendant to his motion, he should have stated that had the cause been noticed for trial, it might have been tried.
1Opinion of the Court
By the Court,
Sutherland, J.
It is not necessary to state in the affidavit that the cause might have been tried, had it been noticed when the venue is laid in any county other than New-Yorlc; when the venue is laid there, such fact must be stated. 13 Johns. R. 156. In the case of Ross v. Vaughan, 3 Johns. R. 442, decided in 1808, where the venue was laid in Essex, it was shewn that had the cause been noticed, it could not have been tried ; the court held the excuse insufficient, saying that the rule adopted in respect to New-York causes was not intended to apply to country causes. In a late…
2Cited by1 opinion
- Hill v. WebberMichigan Supreme Court · 1883